VED PRAKASH Vs. NABAB HUSSAIN

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THIS revision Is directed against the order dated 18 -10 -2004, passed in Civi1 suit No. 119 of 2001, by learned Civil Judge (Senior Division) Udham Singh Nagar, by which issue No. 7 has been decided in favour of the defendant NO.3. The said Issue relates to the following point : Whether, the suit is barred by Section 88 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 ?

(3.) AFORESAID Section clearly bars institution of suit against the U.P. Avas Evam Vikas Parishad or its officer until expiration of two months notice in writing. The said provision is silent as to the pending suits. Here, defendant No.3 has been impleaded in a pending suit. It is nowhere provided that even in the pending cases notice would be required to be given under aforesaid Section. In the opinion of this Court. where a party is impleaded under orders of the court under Order 1 Rule 10 of the Code of Civil Procedure. 1908. that too within the time specified in the order like in the present one in which only two days time was allowed if the statutory notice is not given it cannot be said that the suit is bad for want of notice. The most significant fact in this case is this the trial court vide its order dated 15 -07 -2004 passed on issue Nos.2 and 3 directed the plaintiff to implead U.P. Avas .Evam Vikas Parishad within a period of two days. In the circumstances plaintiff has no opinion but to implead the Parishad without serving any notice. Though, no relief has been sought by the plaintiff against the Parishad, nor any cause of action has been - alleged, however, the plaintiff was bound to comply the direction contained in court's order dated 15 -07 -2004. On one hand, the trial court directed the plaintiff on 15 -07 -2004 to implead the U.P. Avas Evam Vikas Parishad within two days while, on the other hand, on 18 -102004 (vide impugned order) it has given finding that the suit is bad for want of notice under Section 88 of the U.P. Avas Evam Vikas Parishad Ahiniyam, 1965.